Introduction to Character Evidence

Question 1

Why would the court want to limit character evidence?

Answer 1

• While often logically relevant, character evidence presents a substantial danger that the trier of fact will use the evidence in improper ways that are unfairly prejudicial.

Question 2

What form does character evidence often take?

Answer 2

• Offered, typically, in the form of witness testimony.

Question 3

What is required for a character witness to testify?

Answer 3

• A character witness MUST have sufficient “familiarity” with person/community.

Question 4

What is the character evidence analysis?

Answer 4

• (1) Is it character evidence at all?
• (2) Why is CE being offered and is it admissible for that purpose?

Question 5

What are the three kinds of character evidence?

Answer 5

• (1) reputation
• (2) opinion
• (3) prior bad acts

Question 6

What is reputation evidence?

Answer 6

• Witness testifies to another’s reputation as to character
  o (e.g., “Everyone thinks V is violent.”);
• Note that reputation is merely the collective opinion of others.

Question 7

Is reputation evidence inadmissible hearsay?

Answer 7

• Reputation evidence is hearsay (the character witness is offering what people told him/her of their view of the other’s character), but a hearsay exception applies. FRE 803(21).

Question 8

What is an example of opinion evidence?

Answer 8

• Witness testifies to their opinion of another’s character (e.g., “I think V is violent.”)

Question 9

What is prior bad act evidence?

Answer 9

• Witness testifies to specific acts (specific instances of conduct) of another that reflect the other’s character (e.g., “I saw V beat up X last week,” offered to show V is violent.”).
• To identify when specific act are being offered as CE, they involve different people, places, times, or events than that which is the subject of the trial.

Question 10

For what three purposes will character evidence be offered?

Answer 10

• (1) impeachment character evidence
• (2) propensity character evidence
• (3) element character evidence

Question 11

What is impeachment character evidence?

Answer 11

• CE offered to impeach (or rehabilitate) a witness with evidence of their character for truthfulness; referred to by some as “limited” use of CE.
• This is generally admissible.
  o EXAMPLE: Character Witness (CW) testifies, “In my opinion, Eyewitness is not an honest person, and everyone who knows him feels that way,” offered to show that since Eyewitness commonly lies, Eyewitness is likely to be lying in Eyewitness’s testimony in this trial.

Question 12

What is propensity character evidence?

Answer 12

• CE offered as circumstantial evidence to show conforming conduct; referred to by some as “defensive” use of CE.
• General rule = NOT admissible. FRE 404(a).
  o EXAMPLE: Character Witness (CW) testifies, “In my opinion, Defendant is a terrible driver. He has a reputation for speeding and driving recklessly,” offered to show that since Defendant is generally a dangerous driver, Defendant is likely to have been driving recklessly and caused the accident that is the subject of this trial.

Question 13

What is element character evidence?

Answer 13

• CE offered because it’s relevant to an essential element of the claim or cause of action; referred to by some as “offensive” use of CE.
• General rule = Admissible, but rare in civil cases; even more rare in criminal cases.
  o EXAMPLE: In a child custody hearing, Character Witness (CW) testifies, “In my opinion, Spouse 1 is a wonderful parent and Spouse 2 is a terrible parent. Everyone who knows them thinks so,” offered to show that since Spouse 1 is generally better parent than Spouse 2, Spouse 1 should get sole custody of the child.

Question 14

In which specific cases would character be an essential element of a cause of action?

Answer 14

• (1) Defamation - damage to reputation is an element of the tort.
• (2) Negligent entrustment, hiring, supervision - Defendant’s entrustment, hiring, or supervision of an employee/entrustee who caused injury was negligent considering the employee/entrustee reputation.
• (3) Immigration - person’s character is relevant to being permitted entry to the country.
• (4) Child custody - both parents’ fitness to raise children is in issue.
• (5) Entrapment - defense in a criminal case that Defendant was induced by the government to commit the crime and is not the type of person (character) who would have committed the crime absent that inducement.